99TH GENERAL ASSEMBLY State of Illinois 2015 and 2016 HB2506

Introduced , by Rep. David Harris

SYNOPSIS AS INTRODUCED:

755 ILCS 5/11a-17 from Ch. 110 1/2, par. 11a-17

Amends the Probate Act of 1975. Provides that unless a guardian of the person of a disabled adult is specifically authorized by court order, the guardian shall not restrict the personal rights of the ward, including, but not limited to, the right to receive visitors, telephone calls, and personal mail.

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A BILL FOR

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1 AN ACT concerning civil law.

2 Be it enacted by the People of the State of Illinois,

3 represented in the General Assembly:

4 Section 5. The Probate Act of 1975 is amended by changing

5 Section 11a-17 as follows:

6 (755 ILCS 5/11a-17) (from Ch. 110 1/2, par. 11a-17)

7 Sec. 11a-17. Duties of personal guardian.

8 (a) To the extent ordered by the court and under the

9 direction of the court, the guardian of the person shall have

10 custody of the ward and the ward's minor and adult dependent

11 children and shall procure for them and shall make provision

12 for their support, care, comfort, health, education and

13 maintenance, and professional services as are appropriate, but

14 the ward's spouse may not be deprived of the custody and

15 education of the ward's minor and adult dependent children,

16 without the consent of the spouse, unless the court finds that

17 the spouse is not a fit and competent person to have that

18 custody and education. The guardian shall assist the ward in

19 the development of maximum self-reliance and independence. The

20 guardian of the person may petition the court for an order

21 directing the guardian of the estate to pay an amount

22 periodically for the provision of the services specified by the

23 court order. If the ward's estate is insufficient to provide

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1 for education and the guardian of the ward's person fails to

2 provide education, the court may award the custody of the ward

3 to some other person for the purpose of providing education. If

4 a person makes a settlement upon or provision for the support

5 or education of a ward, the court may make an order for the

6 visitation of the ward by the person making the settlement or

7 provision as the court deems proper. A guardian of the person

8 may not admit a ward to a mental health facility except at the

9 ward's request as provided in Article IV of the Mental Health

10 and Developmental Disabilities Code and unless the ward has the

11 capacity to consent to such admission as provided in Article IV

12 of the Mental Health and Developmental Disabilities Code.

13 (a-3) Unless specifically authorized by court order, a

14 guardian shall not restrict the personal rights of the ward,

15 including, but not limited to, the right to receive visitors,

16 telephone calls, and personal mail.

17 (a-5) If the ward filed a petition for dissolution of

18 marriage under the Illinois Marriage and Dissolution of

19 Marriage Act before the ward was adjudicated a disabled person

20 under this Article, the guardian of the ward's person and

21 estate may maintain that action for dissolution of marriage on

22 behalf of the ward. Upon petition by the guardian of the ward's

23 person or estate, the court may authorize and direct a guardian

24 of the ward's person or estate to file a petition for

25 dissolution of marriage or to file a petition for legal

26 separation or declaration of invalidity of marriage under the

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1 Illinois Marriage and Dissolution of Marriage Act on behalf of

2 the ward if the court finds by clear and convincing evidence

3 that the relief sought is in the ward's best interests. In

4 making its determination, the court shall consider the

5 standards set forth in subsection (e) of this Section.

6 (a-10) Upon petition by the guardian of the ward's person

7 or estate, the court may authorize and direct a guardian of the

8 ward's person or estate to consent, on behalf of the ward, to

9 the ward's marriage pursuant to Part II of the Illinois

10 Marriage and Dissolution of Marriage Act if the court finds by

11 clear and convincing evidence that the marriage is in the

12 ward's best interests. In making its determination, the court

13 shall consider the standards set forth in subsection (e) of

14 this Section. Upon presentation of a court order authorizing

15 and directing a guardian of the ward's person and estate to

16 consent to the ward's marriage, the county clerk shall accept

17 the guardian's application, appearance, and signature on

18 behalf of the ward for purposes of issuing a license to marry

19 under Section 203 of the Illinois Marriage and Dissolution of

20 Marriage Act.

21 (b) If the court directs, the guardian of the person shall

22 file with the court at intervals indicated by the court, a

23 report that shall state briefly: (1) the current mental,

24 physical, and social condition of the ward and the ward's minor

25 and adult dependent children; (2) their present living

26 arrangement, and a description and the address of every

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1 residence where they lived during the reporting period and the

2 length of stay at each place; (3) a summary of the medical,

3 educational, vocational, and other professional services given

4 to them; (4) a resume of the guardian's visits with and

5 activities on behalf of the ward and the ward's minor and adult

6 dependent children; (5) a recommendation as to the need for

7 continued guardianship; (6) any other information requested by

8 the court or useful in the opinion of the guardian. The Office

9 of the State Guardian shall assist the guardian in filing the

10 report when requested by the guardian. The court may take such

11 action as it deems appropriate pursuant to the report.

12 (c) Absent court order pursuant to the Illinois Power of

13 Attorney Act directing a guardian to exercise powers of the

14 principal under an agency that survives disability, the

15 guardian has no power, duty, or liability with respect to any

16 personal or health care matters covered by the agency. This

17 subsection (c) applies to all agencies, whenever and wherever

18 executed.

19 (d) A guardian acting as a surrogate decision maker under

20 the Health Care Surrogate Act shall have all the rights of a

21 surrogate under that Act without court order including the

22 right to make medical treatment decisions such as decisions to

23 forgo or withdraw life-sustaining treatment. Any decisions by

24 the guardian to forgo or withdraw life-sustaining treatment

25 that are not authorized under the Health Care Surrogate Act

26 shall require a court order. Nothing in this Section shall

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1 prevent an agent acting under a power of attorney for health

2 care from exercising his or her authority under the Illinois

3 Power of Attorney Act without further court order, unless a

4 court has acted under Section 2-10 of the Illinois Power of

5 Attorney Act. If a guardian is also a health care agent for the

6 ward under a valid power of attorney for health care, the

7 guardian acting as agent may execute his or her authority under

8 that act without further court order.

9 (e) Decisions made by a guardian on behalf of a ward shall

10 be made in accordance with the following standards for decision

11 making. Decisions made by a guardian on behalf of a ward may be

12 made by conforming as closely as possible to what the ward, if

13 competent, would have done or intended under the circumstances,

14 taking into account evidence that includes, but is not limited

15 to, the ward's personal, philosophical, religious and moral

16 beliefs, and ethical values relative to the decision to be made

17 by the guardian. Where possible, the guardian shall determine

18 how the ward would have made a decision based on the ward's

19 previously expressed preferences, and make decisions in

20 accordance with the preferences of the ward. If the ward's

21 wishes are unknown and remain unknown after reasonable efforts

22 to discern them, the decision shall be made on the basis of the

23 ward's best interests as determined by the guardian. In

24 determining the ward's best interests, the guardian shall weigh

25 the reason for and nature of the proposed action, the benefit

26 or necessity of the action, the possible risks and other

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1 consequences of the proposed action, and any available

2 alternatives and their risks, consequences and benefits, and

3 shall take into account any other information, including the

4 views of family and friends, that the guardian believes the

5 ward would have considered if able to act for herself or

6 himself.

7 (f) Upon petition by any interested person (including the

8 standby or short-term guardian), with such notice to interested

9 persons as the court directs and a finding by the court that it

10 is in the best interest of the disabled person, the court may

11 terminate or limit the authority of a standby or short-term

12 guardian or may enter such other orders as the court deems

13 necessary to provide for the best interest of the disabled

14 person. The petition for termination or limitation of the

15 authority of a standby or short-term guardian may, but need

16 not, be combined with a petition to have another guardian

17 appointed for the disabled person.

18 (Source: P.A. 98-1107, eff. 8-26-14.)